[2023] KEELC 16219 (KLR)
The court held that a valuation report cannot be admitted in evidence without calling the maker or an authorized representative to testify, as the party relying on the report must discharge the burden of proof by adducing sufficient evidence. The mere tabling of the report without a witness does not satisfy the...
Source-derived case information.
- Citation
- [2023] KEELC 16219 (KLR)
- Parties
- Plaintiff: John Kagechu Muiruri t/a Mururi Auto Parts; Plaintiff: Richard Kimani Wahinya t/a Markhan Entrprises; Plaintiff: Royal Tyres Ltd; Plaintiff: Wambua Musau Kanyange t/a Kiko Auto Tyres; Plaintiff: Peter Kioko Makau T/A Kiko Auto Tyres; Plaintiff: Patel Automobile House Limited; Defendant: Kihumo Property Devellpers (K) Ltd
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 945 of 2016
- Procedural Posture
- Environment and Land Case / Ruling on Admissibility of Valuation Report for Mesne Profits at Formal Proof
- Outcome
- Request to admit valuation report without a witness declined.
- Judges
- LN Mbugua
- Legal Topics
- Admissibility of Evidence, Mesne Profits, Formal Proof, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Kagechu Muiruri t/a Mururi Auto Parts
Plaintiff
Richard Kimani Wahinya t/a Markhan Entrprises
Plaintiff
Royal Tyres Ltd
Plaintiff
Wambua Musau Kanyange t/a Kiko Auto Tyres
Plaintiff
Peter Kioko Makau T/A Kiko Auto Tyres
Plaintiff
Patel Automobile House Limited
Plaintiff
Kihumo Property Devellpers (K) Ltd
Defendant
Procedural Posture
Environment and Land Case / Ruling on Admissibility of Valuation Report for Mesne Profits at Formal Proof
Legal Issues
- 1 Whether a valuation report can be admitted in evidence without calling the maker as a witness at formal proof.
- 2 Whether the party seeking mesne profits has discharged the burden of proof in the absence of oral evidence supporting the valuation report.
Ratio Decidendi
The court held that a valuation report cannot be admitted in evidence without calling the maker or an authorized representative to testify, as the party relying on the report must discharge the burden of proof by adducing sufficient evidence. The mere tabling of the report without a witness does not satisfy the evidentiary requirements, even at formal proof or in an undefended claim. The request to admit the valuation report without a witness was therefore declined.
Court Disposition
Request to admit valuation report without a witness declined.
Orders
- The request to have the valuation report tabled without a witness is declined.
Full Case Text
Judgment text and source record
29 paragraphs
Muiruri t/a Mururi Auto Parts & 5 others v Kihumo Property Devellpers (K) Ltd (Environment & Land Case 945 of 2016) [2023] KEELC 16219 (KLR) (2 March 2023) (Ruling)
Neutral citation: [2023] KEELC 16219 (KLR)
Republic of Kenya
In the Environment and Land Court at Nairobi
Environment & Land Case 945 of 2016
LN Mbugua, J
March 2, 2023
Between
John Kagechu Muiruri t/a Mururi Auto Parts
1st Plaintiff
Richard Kimani Wahinya t/a Markhan Entrprises
2nd Plaintiff
Royal Tyres Ltd
3rd Plaintiff
Wambua Musau Kanyange t/a Kiko Auto Tyres
4th Plaintiff
Peter Kioko Makau T/A Kiko Auto Tyres
5th Plaintiff
Patel Automobile House Limited
6th Plaintiff
and
Kihumo Property Devellpers (K) Ltd
Defendant
Ruling
1. Vide a ruling delivered by this court on November 29, 2017, Summary Judgment was entered for the defendant against the plaintiffs, of which the plaintiffs were to give vacant possession of the land. The plaintiffs had indeed vacated the suit land as at July 30, 2018. Thus only the prayer for mesne profits is outstanding.
2. On February 21, 2023, counsel for the defendants (plaintiffs in the counter-claim) requested to just table the valuation report without a witness as they were having difficulties getting the person who did the valuation.
3. However in formal proof, a party is required to adduce sufficient evidence to raise a presumption that what is claimed is true-see Samson S. Maitai & Another vs. African Safari Club Limited & Another [2010] eKLR. A claimant in an undefended claim is still required to discharge that burden of proof.
4. Since someone has to own the report, in this case the plaintiff, then the said party is at liberty to avail the report by itself or its appointed representatives if the valuer cannot be found. Otherwise I decline the request to have the report tabled before this court without a witness.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 2ND DAY OF MARCH, 2023 THROUGH MICROSOFT TEAMS.LUCY N. MBUGUAJUDGEIn the presence of:-Mongeri for DefendantCourt assistant: Vanilla